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Neutral Citation Number: r20121 EWHC 2381 (Admin) 



Case No: CO/7774/2010; CO/7850/2011 

IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT 

Royal Courts of Justice 
Strand, London, WC2A 2LL 

Date: 16/08/2012 

Before: 

LORD JUSTICE TOULSON 
MR JUSTICE ROYCE 
and 

MRS JUSTICE MACUR 



Between: 

THE QUEEN ON THE APPLICATION OF TONY 
NICKLINSON 
- and - 

MINISTRY OF JUSTICE 



Claimant 



Defendant 



DIRECTOR OF PUBLIC PROSECUTIONS Interested 
JANE NICKLINSON Parties 

And Between: 

THE QUEEN ON THE APPLICATION OF AM 
- and - 

(1) DIRECTOR OF PUBLIC PROSECUTIONS 
(2) THE SOLICITORS REGULATION 
AUTHORITY 
(3) THE GENERAL MEDICAL COUNCIL 

AN NHS PRIMARY CARE TRUST Interested 

Party 



Claimant 
Defendants 



THE ATTORNEY GENERAL Interveners 
CNK ALLIANCE LTD (CARE NOT KILLING) 



Paul Bowen QC (instructed by Bindmans LLP) for Tony Nicklinson 
David Perry QC and James Strachan (instructed by Treasury Solicitor) for the Ministry of 

Justice 

Philip Havers QC and Adam Sandell (Instructed by Leigh Day & Co) for AM 
John McGuinness QC (Instructed by CPS Appeals Unit) for the Director of Public 

Prosecutions 

Timothy Dutton QC and Miss M Butler (instructed by Bevan Brittan) for the Solicitors 

Regulation Authority 
Robert Englehart QC and Andrew Scott (Instructed by GMC Legal) for the General 

Medical Council 

Jonathan Swift QC and Joanne Clement (Instructed by Treasury Solicitor) for the Attorney 

General 

Charles Foster and Benjamin Bradley (Instructed by Barlow Robbins LLP) for the CNK 

Alliance Ltd 

Hearing dates: 19-22 June 2012 



Approved Judgment 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



Lord Justice Toulson: 
Introduction 

1. These are tragic cases. They present society with legal and ethical questions of the 
most difficult kind. They also involve constitutional questions. At the invitation of 
the court the Attorney General has intervened. 

2. Put simply, the claimants suffer from catastrophic physical disabilities but their 
mental processes are unimpaired in the sense that they are fully conscious of their 
predicament. They suffer from "locked in syndrome". Both have determined that 
they wish to die with dignity and without further suffering but their condition makes 
them incapable of ending their own lives. Neither is terminally ill and they face the 
prospect of living for many years. 

3. I will refer to the claimants as Martin and Tony. Martin (which is not his real name) 
understandably wishes to preserve his privacy and the court has made an anonymity 
order. Tony's case has attracted a lot of public interest because he has taken part in 
public debate with the help of his wife, Mrs Nicklinson, and their daughters. As Mrs 
Nicklinson has said to the media, whatever the outcome of his case, there will be no 
winners. Either way, there is no happy ending in sight. 

4. Barring unforeseen medical advances, neither Martin's nor Tony's condition is 
capable of physical improvement. Although they have many similarities, there are 
some differences in their condition. There are also differences in the orders which 
they seek and the ways in which their cases have been presented. 

Martin 

5. Martin would be capable of physically assisted suicide, but this would involve 
someone else committing an offence under the Suicide Act 1961, section 2. It would 
be possible for him to end his life at a Dignitas clinic in Zurich without an offence 
being committed under Swiss law; and if Martin's wife were willing to help him to do 
so, it is unlikely that she would face prosecution in England under the policy 
published by the Director of Public Prosecution (DPP) about prosecution for assisted 
suicide after the decision of the House of Lords in R (Purdy) v DPP [2009] UKHL 45, 
[2010] 1 AC 345. But Martin's wife, who is herself a nurse and devoted to his care, is 
understandably not willing to support Martin for that purpose, with which she does 
not agree, although she would wish to be with him to provide comfort and make her 
final farewell, if he were to succeed in his purpose by the help of others. 

6. Martin's main claim is against the DPP, but the Solicitors Regulation Authority 
(SRA) and the General Medical Council (GMC) have been included in the 
proceedings. Because of the importance of the issues, I would give Martin permission 
to apply for judicial review. 

7. In his claim Martin's condition is described in this way: 

"6. Martin is 47 years old. He lives with his wife and his 
wife's daughter. In August 2008 he suffered a brain 
stem stroke. This has left him virtually unable to 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



move. He cannot speak. He can communicate only 
through small movements of his head and eyes and, 
very slowly, by using a special computer that can 
detect where on a screen he is looking. 

7. He is totally dependant on others for every aspect of 
his life. He lives in an adapted room in his family 
home. He spends almost all of his time in bed, 
although he can be taken out of the house. His care is 
provided by his wife. . .and by full-time carers provided 
by his local NHS Primary Care Trust. 

8. Martin is fed by people putting food into his mouth. 
He is able to swallow. His medication goes through a 
tube through his abdominal wall into his stomach. He 
wears a convene (a sheath over his penis, attached to a 
tube, into which he urinates). He defecates into special 
underwear. Adjoining the room in which he lives, he 
has a specially adapted bathroom in which he can be 
washed. 

9. He is, it is understood, not likely to die of natural 
causes in the near future. 

10. Martin has a strong, settled and reasoned wish to end 
his life. He loves his family, and enjoys spending time 
with them, and he likes to read. But he finds his life 
and his condition following his stroke to be 
undignified, distressing and intolerable. He does not 
wish to go on living like this. And, because he finds 
his current life unbearable, he wishes to end his life as 
soon as possible." 

There are, it seems, two ways by which he might achieve that aim. One would be by 
using the services of Dignitas in Zurich, if he is able to afford them. It is said in his 
claim that Dignitas is not cheap and that Martin's resources are limited. The other 
means would be by self-starvation. There is medical evidence that this would involve 
considerable pain and distress, although it would be possible for medical staff to 
provide some alleviation in order to reduce his suffering without crossing the line of 
intentionally assisting his suicide attempt. 

The primary relief sought by Martin is an order that the DPP should clarify his 
published policy so that other people, who may on compassionate grounds be willing 
to assist Martin to commit suicide through the use of Dignitas, would know, one way 
or the other, whether they would be more likely than not to face prosecution in 
England. The potential helper or helpers might be a member of the public who had no 
previous knowledge of Martin, a health professional or a solicitor who might act as an 
intermediary in making the necessary arrangements. The clarification which Martin 
now asks for is limited to the Dignitas scenario, because by the end of the hearing 
Philip Havers QC, on his behalf, accepted that no clarification is required regarding 
the self- starvation scenario, in view of things said during the course of the hearing. 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



10. If he succeeds in his claim against the DPP, Martin also seeks declarations in relation 
to the GMC and SRA in order that a doctor or solicitor who played a part in helping 
Martin to commit suicide via Dignitas, without facing risk of prosecution under the 
DPP's clarified policy, should not be exposed to the risk of professional disciplinary 
proceedings. In the alternative (and Mr Havers made it clear that this was very much 
a fallback position), if Martin fails in his claim against the DPP, he seeks a declaration 
that section 2 of the Suicide Act is incompatible with article 8 of the European 
Convention. 

Tony 

11. Tony is now aged 58. He suffered a catastrophic stroke in June 2005. He is paralysed 
below the neck and unable to speak. He cannot move anything but his head and eyes. 
He communicates by blinking to indicate a letter held up by his wife on a Perspex 
board. He also now has an eye blink computer which makes word processing faster 
for him. He has described it as a "ray of sunshine on an otherwise bleak horizon", but 
the process of communication is still desperately slow. He estimates that it takes him 
3 hours to write what a person without disabilities could do in 20 minutes. He is 
virtually housebound. Although the family has a wheelchair adapted car, he rarely 
goes out as he has lost interest in doing so. His meals are soft food, mashed up and 
taken orally, and fluids inserted directly into the stomach through the abdominal wall 
by a percutaneous endoscopic gastrostomy or PEG tube. Swallowing is a difficult and 
laborious business. He often coughs and has to have the saliva wiped from his face. 

12. Tony's day presently consists of writing his memoirs and watching TV. In the 
morning two carers come to get him out of bed. They shower him, get him dressed 
and put him for a short time on a cycling machine. He is then given breakfast and 
placed in a wheelchair. He spends the morning writing and the afternoon watching 
TV. At 4pm two carers come to transfer him from the wheelchair to an armchair. At 
10.30pm a carer helps Mrs Nicklinson to undress him, wash him and make him ready 
for bed, where he remains until 8.30am the following day. He has a night time carer 
to move him, which happens usually 3 or 4 times per night. Recently he took part in 
the making of a TV documentary which was broadcast on the eve of the hearing. The 
members of the court watched it. 

13. In a statement he has summarised his condition in this way: 

"My life can be summed up as dull, miserable, demeaning, 
undignified and intolerable. ...it is misery created by the 
accumulation of lots of things which are minor in themselves 
but, taken together, ruin what's left of my life. Things 
like... constant dribbling; having to be hoisted everywhere; loss 
of independence, ...particularly toileting and washing, in fact 
all bodily functions (by far the hardest thing to get used to); 
having to forgo favourite foods; ... having to wait until 10.30 to 
go to the toilet... in extreme circumstances I have gone in the 
chair, and have sat there until the carers arrived at the normal 
time." 

14. Shortly before the hearing Tony sent an email to his solicitors which he asked should 
be read out to the court. He said: 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



"All this current activity, making documentary and writing 
articles, has reminded me of how much I want my life to end. I 
know you said this hearing is all about legal argument, but is it 
possible for you to remind the judges of a few things? I have 
wanted my life to end since 2007 so it is not a passing whim. I 
know consent makes no difference but the doctor has it 
anyway. Legal arguments are fine but they should not forget 
that a life is affected by the decision they come to. A decision 
going against me condemns me to a life of increasing misery. I 
have no doubt the judges have heard it all before, but I simply 
wanted to get it off my chest." 

15. As things are, the only way in which Tony could end his life other than by self- 
starvation would be by voluntary euthanasia. With his wife's help he could probably 
travel to Switzerland, but that would not help him because euthanasia is outside the 
scope of Dignitas' activities. No country in the world permits the practice of 
voluntary euthanasia in the case of non-residents. 

16. According to a statement by Dr Philip Nitschke, who is a doctor in North Australia, it 
would be technologically possible for Tony to take the final step of initiating suicide 
with the aid of a machine which Dr Nitschke has invented. The machine would be 
pre-loaded with lethal drugs and could be digitally activated by Tony using an 
appropriate pass phrase, but it would be an elaborate procedure requiring the machine 
to be set up, tested and connected to Tony's PEG tube. 

17. In these circumstances Tony wants to be able to choose to end his life by voluntary 
euthanasia. This does not mean that he necessarily wants to end his life immediately. 
At the moment he thinks that he would probably wish to end it in a year or two, but he 
wants to establish the right to die with dignity at a time of his choosing. 

18. On 12 March 2012 Charles J gave Tony permission to apply for the following relief 
by way of judicial review: 

"1. A declaration that it would not be unlawful, on the 
grounds of necessity, for Mr Nicklinson' s GP, or another 
doctor, to terminate or to assist the termination of Mr 
Nicklinson' s life. By way of preliminary issue, the 
claimant seeks a declaration that the common law 
defence of necessity is available to a charge of murder in 
a case of voluntary active euthanasia and/or to a charge 
under s2(l) of the 1961 Act in the case of assisted suicide 
provided 

(a) the Court has confirmed in advance that the 
defence of necessity will arise on the facts of the 
particular case; 

(b) the Court is satisfied that the person is suffering 
from a medical condition that causes unbearable 
suffering; that there are no alternative means 
available by which his suffering may be relieved; 



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Q on the appn of AM v DPP 



and that he has made a voluntary, clear, settled 
and informed decision to end his life; 

(c) the assistance is to be given by a medical doctor 
who is satisfied that his or her duty to respect 
autonomy and to ease the patient's suffering 
outweighs his or her duty to preserve life; 

2. Further or alternatively, a declaration that the current 
law of murder and/or of assisted suicide is 
incompatible with Mr Nicklinson' s right to respect for 
private life under article 8, contrary to si and 6 of the 
Human Rights Act 1998, in so far as it criminalises 
voluntary active euthanasia and/or assisted suicide." 

19. As to the second ground of relief, at the hearing counsel representing Tony, Paul 
Bowen QC, accepted that it would not be right for the court to make a declaration that 
the current law of murder is incompatible with the Convention in so far as it 
criminalises voluntary active euthanasia, since murder is not a statutory offence, 
although there are certain statutory defences. The question whether voluntary active 
euthanasia may give rise to a defence of necessity to a charge of murder is governed 
by the common law. The Human Rights Act 1998 does not make provision for the 
courts to declare that the common law is incompatible with a Convention right. There 
is good reason for this. The common law is declared by the courts, which have the 
power to develop it. Section 6(1) makes it unlawful for a public authority to act in a 
way which is incompatible with a Convention right. The courts are a public authority 
and therefore are responsible for ensuring that the law, as they declare it, is 
compatible with the Convention. Section 6(2) provides an exception where a court is 
bound by primary legislation to reach a result which is incompatible with a 
Convention right. In such circumstances the doctrine of Parliamentary sovereignty 
requires the court to give effect to the legislation, but section 4 makes provision for 
the court to declare that the legislation is incompatible with a Convention right. 

20. If the court were satisfied that article 8 requires that voluntary active euthanasia 
should in relevant circumstances be a defence to murder, its proper course in 
accordance with section 6(1) would be to recognise that there is such a defence under 
the doctrine of necessity. The court should not rule that there is no such defence at 
common law, but that the common law is incompatible with the Convention, for that 
would amount to a statement that the court had failed to comply with the Convention 
in determining the scope of the common law. Put another way, it would amount to a 
declaration that the court had itself failed to comply with its statutory obligation under 
section 6(1). 

21. There is no constitutional impediment to Tony seeking a declaration that section 2 of 
the Suicide Act is incompatible with article 8, but on the facts of his case it is a 
somewhat academic question, given that he is not in a condition to be able to commit 
assisted suicide. The evidence of Dr Nitschke makes it not entirely academic, but the 
main part of Mr Bowen' s argument was directed to establishing that article 8 requires 
voluntary active euthanasia to be permitted by law in Tony's circumstances. 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



22. As a further alternative, Mr Bowen asked the court to declare that the legislation 
under which murder carries a mandatory sentence of life imprisonment is 
incompatible with the European Convention in a case of genuinely compassionate 
voluntary active euthanasia. 

23. The evidence on Tony's behalf consisted of statements from himself, members of his 
family and various experts' reports. These were all admitted by consent. 

24. The skeleton arguments on behalf of Tony and Martin both contained a number of 
references to a report dated January 2012 by The Commission on Assisted Dying. 
This was a committee with a distinguished membership, chaired by Lord Falconer. 
The Commission obtained evidence from a wide variety of sources and its report 
contains much interesting information. We were asked to read the report and have 
done so. However, it is important to stress that it was not an officially appointed 
commission. Its report contains an interesting analysis of arguments and views, but it 
would not be right for the court to treat it as having some form of official or quasi- 
official status. It also refers to various statements made to the Commission by Tony, 
of which we have taken note. 

25. Shortly before the hearing, judgment was given by Smith J in the Supreme Court of 
British Columbia in the case of Carter v Canada [2012] BCSC 886. After a 22 day 
trial, in which the judge heard a large amount of expert opinion, she delivered a 
judgment declaring that the provisions of the Criminal Code of Canada which prohibit 
physician-assisted dying are incompatible with the Canadian Charter of Rights and 
Freedoms. Mr Bowen applied for leave to introduce the evidence in that case as 
evidence in the present proceedings. The evidence was not available to him at the 
time of the application and he recognised that, if it were admitted, there would have to 
be a further hearing in order to enable the witnesses to be called and cross-examined. 
Other parties would also need to be given the opportunity to consider whether they 
wished to introduce contradictory expert evidence. Mr Bowen did not seek to delay 
the court from hearing the arguments which the parties had come prepared to present, 
but asked that we should consider the application to introduce further evidence when 
considering judgment. 

Issues 

26. The central issues are these: 



1. 



Is voluntary euthanasia a possible defence to murder? 



2. 



Is the DPP under a legal duty to provide further 
clarification of his policy? 



3. 



Alternatively, is section 2 of the Suicide Act 
incompatible with article 8 in obstructing Martin or 
Tony from exercising a right in their circumstances to 
receive assistance to commit suicide? 



4. 



Are the GMC and the SRA under a legal duty to clarify their positions? 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



5. Is the mandatory life sentence for murder incompatible with the 
Convention in a case of genuine voluntary euthanasia? 

27. Before commenting on the arguments and relevant authorities, I should first refer to 
the historical position of suicide and euthanasia at common law, the provisions of the 
Suicide Act, the DPP's policy statement, the European Convention and Parliamentary 
proposals for changing the law. 

Suicide and euthanasia at common law 

28. At common law suicide was self-murder or "felo de se". Murder was a felony. There 
were three categories of person who could be convicted of a felony: principals in the 
first degree, principals in the second degree and accessories before the fact. A 
principal in the first degree was a person who carried out the conduct element of the 
offence (in murder, the killing) with the necessary mental element. (There might be 
more than one principal in the first degree.) A principal in the second degree was 
someone who was present and aided or abetted the actual perpetrator of the felony at 
the time when the felony was committed. An accessory before the fact was a person 
who gave deliberate encouragement or assistance in advance. The Criminal Law Act 
1977 abolished the distinction between felonies and other types of offence. Under the 
new classification, offences which used to be felonies are now indictable offences, i.e. 
triable by a jury. Those who were principals in the second degree or accessories 
before the fact (in short, those who assisted or encouraged the commission of an 
offence) are now known as secondary parties or accessories. The changes in title 
have not affected the substantive law, but I have referred to the old terminology in 
order to explain what used to be the common law regarding suicide. 

29. Someone who committed suicide was a self-murderer in the eye of the law, but 
obviously could not be prosecuted. However, if he committed suicide by agreement 
with another, for example under a suicide pact, and the other person survived, the 
survivor was guilty of murder. This was confirmed by the Court of Criminal Appeal 
in Croft [1944] 1 KB 295. 

30. In that case the trial judge directed the jury that the survivor of a suicide pact was 
guilty of the murder of the deceased, even if he was not present when the death 
occurred. The appellant was convicted and sentenced to death. His appeal was 
dismissed. 

31. The law was amended by section 4 of the Homicide Act 1957, which provided that 
the survivor of a suicide pact should be guilty of manslaughter rather than murder, 
provided that the defendant had himself the settled intention of dying in pursuance of 
the pact. In all other circumstances, it remained the law until the Suicide Act 1961 
that a person who assisted or encouraged another to commit suicide was guilty of 
murder. A person who carried out an act of euthanasia would have been a principal in 
the first degree. A person who attempted to commit suicide, but failed, was guilty of 
attempting to murder himself. 

Suicide Act 1961 



32. Section 1 provides: 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



"The rule of law whereby it is a crime for a person to commit 
suicide is hereby abrogated." 

33. If the Act had stopped there, it would have followed that those who assisted or 
encouraged a person to commit suicide would also no longer be guilty of an offence. 
That was not Parliament's intention. In order to prevent that consequence, by section 
2 it created a new offence of complicity in another's suicide. Section 2 was amended 
by section 59 of the Coroners and Justice Act 2009, but the purpose was to clarify, 
rather than change, the law on assisted suicide. The Lord Chancellor explained the 
rationale on the second reading of the Bill in the House of Commons: 

"Both the Law Commission and an independent review 
identified confusion about the scope of the law on assisted 
suicide... [Section 59] does not substantively change the law, 
but it does simplify and modernise the language of section 2 of 
the Suicide Act 1961 to increase public understanding and to 
reassure people that the provision applies as much to actions on 
the internet as to actions off-line." (487 HC Official Report (6 th 
Series) Col 35) 



34. Section 2 in its amended form provides: 

"(1) A person ("D") commits an offence if - 

(a) D does an act capable of encouraging or assisting 
the suicide or attempted suicide of another 
person, and 

(b) D's act was intended to encourage or assist 
suicide or an attempt at suicide. 

(IA) The person referred to in subsection (l)(a) need not be 
a specific person (or class of person) known to, or 
identified by, D. 

(IB) D may commit an offence under this section whether 
or not a suicide, or an attempt at suicide, occurs. 

(IC) An offence under this section is triable on indictment 
and a person convicted of such an offence is liable to 
imprisonment for a term not exceeding 14 years. 

(2) If on the trial of an indictment for murder or 
manslaughter of a person it is proved that the deceased 
person committed suicide, and the accused committed 
an offence under subsection (1) in relation to that 
suicide, the jury may find the accused guilty of the 
offence under subsection (1). 



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Q on the appn of AM v DPP 



(4) 



...no proceedings shall be instituted for an offence 
under this section except by or with the consent of the 
Director of Public Prosecutions." 



35. 



Section 2A(1) provides: 



"If D arranges for a person ("D2") to do an act that is capable 
of encouraging or assisting the suicide or attempted suicide of 
another person and D2 does that act, D is also to be treated for 
the purposes of this Act as having done it." 



DPP's policy about prosecution for assisted suicide 

36. In R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345, the House of Lords made a 
mandatory order requiring the DPP "to promulgate [his] policy identifying facts and 
circumstances which he will take into account in deciding whether to consent to 
prosecution under section 2(1) of the Suicide Act 1961." 

37. Before issuing a final policy statement, the DPP, Keir Starmer QC, issued an interim 
policy dated 23 September 2009, and conducted an extensive public consultation 
exercise. Mr Starmer gave evidence to the Falconer Commission, during which he 
was asked questions about how he approached the formulation of his policy 
guidelines and their operation. A transcript of his evidence is included in our 
material. Mr Starmer said that the consultation exercise took several months and that 
there were nearly 5000 responses from a variety of sources, expressing a wide range 
of opinions. There was strong support for most of the factors in favour of, or against, 
prosecution identified in his interim policy, but there were some significant 
exceptions. The most significant exception related to whether or not the status of the 
victim ought to be a relevant factor. 

38. In the interim policy, one of the factors against prosecution was that the victim had "a 
terminal illness; or a severe and incurable physical disability; or a severe degenerative 
physical condition; from which there was no possibility of recovery". Mr Starmer 
said that many organisations representing disabled people or individuals with 
disabilities responded with concern about that factor. He summarised their concern in 
this way: 



"If you have that factor in as a factor suggesting you won't 
prosecute, what that means is in Case A where all the facts are 
the same as Case B and the only difference is that the person 
who committed suicide had some terminal illness, severe or 
incurable disease, that will be the factor that tilts it. From our 
perspective, that suggests to us that we are less well protected 
because you wouldn't prosecute if I fell within category A but 
you would prosecute somebody else." 



39. After consideration of all the consultation responses, the DPP omitted that factor from 
his final policy statement, issued in February 2010. 



40. 



The policy statement lists 16 factors tending in favour of prosecution and 6 factors 
tending against prosecution. 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



41. The factors identified as tending in favour of prosecution include: 

12. The suspect gave encouragement or assistance to more 
than one victim who were not known to each other. 

13. The suspect was paid by the victim or those close to 
the victim for his or her encouragement or assistance. 

14. The suspect was acting in his or her capacity as a 
medical doctor, nurse, other healthcare professional, a 
professional carer (whether for payment or not), or as a 
person in authority, such as a prison officer, and the 
victim was in his or her care. 

16. The suspect was acting in his or her capacity as a 
person involved in the management or as an employee 
(whether for payment or not) of an organisation or 
group, a purpose of which is to provide a physical 
environment (whether for payment or not) in which to 
allow another to commit suicide. 

42. The factors identified as tending against prosecution are: 

1. The victim had reached a voluntary, clear, settled and 
informed decision to commit suicide. 

2. The suspect was wholly motivated by compassion. 

3. The actions of the suspect, although sufficient to come 
within the definition of the offence, were of only minor 
encouragement or assistance. 

4. The suspect had sought to dissuade the victim from 
taking the course of action which resulted in his or her 
suicide. 

5. The actions of the suspect may be characterised as 
reluctant encouragement or assistance in the face of a 
determined wish on the part of the victim to commit 
suicide. 

6. The suspect reported the victim's suicide to the police 
and fully assisted them in their enquiries into the 
circumstances of the suicide or the attempt and his or 
her part in providing encouragement or assistance." 

European Convention 

43. Article 2 provides: 



"1. Everyone's right to life shall be protected by law. No 
one shall be deprived of his life intentionally save in 



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Q on the appn of AM v DPP 



the execution of a sentence of a court following his 
conviction of a crime for which this penalty is 
provided by law. 

2. Deprivation of life shall be not regarded as inflicted in 
contravention of this article when it results from the 
use of force which is no more than absolutely 
necessary: 

(a) in the defence of any person from unlawful 
violence; 

(b) in order to effect a lawful arrest or to prevent the 
escape of a person lawfully detained; 

(c) in action lawfully taken for the purpose of 
quelling a riot or insurrection." 

44. Article 8 provides: 

"1. Everyone has the right to respect for his private and 
family life, his home and his correspondence. 

2. There shall be no interference by a public authority 
with the exercise of this right except such as is in 
accordance with the law and is necessary in a 
democratic society in the interests of national security, 
public safety or the economic well-being of the 
country, for the prevention of disorder or crime, for the 
protection of health or morals, or for the protection of 
the rights and freedoms of others." 

Parliamentary proposals for changing the law 

45. There have been numerous parliamentary attempts to change the law. Lord Joffe 
introduced Bills in the House of Lords unsuccessfully in 2003, 2004 and 2005. The 
Bills were similar in aim. They sought to legalise not only medical assistance with 
suicide but also, in cases where self-administration of lethal medication was not 
possible, voluntary euthanasia. 

46. Lord Joffe' s 2004 Assisted Dying for the Terminally 111 Bill was considered by a 
Select Committee under the chairmanship of Lord Mackay of Clashfern, which 
reported on 4 April 2005. It summarised the evidence which it had received 
(comprising oral evidence from 48 individuals or group representatives, written 
evidence from 88 individuals or groups and 14,000 letters). In Dishonest To God 
(2010, Continuum International Publishing Group), page 46, Baroness Warnock has 
described the Select Committee's report as giving "an exceptionally detailed insight 
into the legal, moral and religious arguments deployed on both sides of the debate". 
The report recommended that consideration of the Bill should be adjourned until after 
the 2005 general election. It also suggested that a clear distinction should be drawn in 
any future Bill between assisted suicide and voluntary euthanasia in order to provide 



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Parliament with an opportunity to consider carefully these two courses of action, and 
the different considerations which apply to them, and to reach a view on whether, if 
such a Bill were to proceed, it should be limited to the one or the other or both. 

47. After the general election Lord Joffe introduced a new Bill of the same name on 9 
November 2005. The debate on the second reading of the Bill took place on 12 May 
2006. The House voted to adjourn it for 6 months. It is the convention of the House 
of Lords not to vote against the principle of a Bill on its second reading, but the 
decision to adjourn the Bill was in substance a decision that it should not proceed. 

48. During the passage of the Coroners and Justice Act 2009 Lord Falconer moved an 
amendment in the House of Lords which would have created an exception to section 2 
of the Suicide Act in the case of acts done for the purpose of enabling or assisting a 
person to travel to a country in which assisted dying is lawful, subject to certain 
conditions. The amendment was defeated. The decision of the House of Lords in 
Purdy was delivered 3 weeks later. 

49. On 27 March 2012 there was debate in the House of Commons on the subject of 
assisted dying. In the course of the debate moving accounts were given by MPs about 
cases of constituents or family members and widely differing views were expressed 
on the desirability of legislative change. The House passed a motion welcoming the 
DPP's policy and encouraging further development of specialist palliative care and 
hospice provision. It rejected an amendment calling on the Government to carry out a 
consultation about whether to put the DPP's guidance on a statutory basis. 

Is voluntary euthanasia a possible defence to murder? 

50. I will begin by considering the question without reference to article 8 of the European 
Convention. Mr Bowen submitted that whether or not Tony has what I will refer to as 
the right to die (using that expression as shorthand for a right not to be prevented by 
the state from undergoing voluntary euthanasia) under that article, the time has come 
when the common law should give respect to his autonomy and dignity by 
recognising that voluntary euthanasia can provide a defence to murder by way of the 
defence of necessity. 

51. Mr Bowen recognised that this is a bold submission. He was not able to cite any 
decision of a court in any common law country to that effect. There are many 
statements to the contrary of high persuasive authority, although technically they were 
obiter because they were not a necessary part of the courts' reasoning. 

52. The Law Commission considered the topic in Part 7 of its report on Murder, 
Manslaughter and Infanticide (2006) Law Com 304. The question whether mercy 
killing should afford a justificatory defence was outside the Commission's terms of 
reference, but the Commission did consider whether to recommend, as part of a re- 
drawing of the boundaries of homicide, that mercy killing should amount to a less 
serious homicide offence than murder. It decided not to make such a recommendation 
but it did recommend that there should be a full consultation on the issue. It said at 
paragraph 7.2: 

"However, we have decided that a recommendation for a 
specific partial defence of "mercy" killing should await a 



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further and more detailed consultation exercise specifically 
concentrating on the issue. We quite simply did not have the 
time that we would have needed to conduct a full consultation 
on such an important issue." 

53. However, because of the importance of the subject, the Commission examined the 
present state of the law. It referred to previous recommendations for reform by the 
Criminal Law Revision Committee in 1976 and by a Select Committee of the House 
of Lords in 1989 (the Nathan Committee), and it referred also to more recent research 
carried out on behalf of the Commission by Professor Barry Mitchell into public 
opinion on the subject. 

54. The Commission summarised the present state of the law as follows: 

"All "mercy" killings are unlawful homicides 

7.4 The law of England and Wales does not recognise 
either a tailor-made offence of 'mercy' killing or a 
tailor-made defence, full or partial, of 'mercy' killing. 
Unless able to avail him or herself of either the partial 
defence of diminished responsibility or the partial 
defence of killing pursuant to a suicide pact, if the 
defendant ("D") intentionally kills the victim ("V") in 
the genuine belief that it is in V's best interests to die, 
D is guilty of murder. This is so even if V wished to 
die and consented to being killed. 

7.5 D is entitled to be convicted of manslaughter rather 
than murder if D proves that: 

(1) he or she was suffering from diminished 
responsibility at the time of killing V; 

(2) he or she was a party to an agreement with 
V which had as its object the death of both 
of them, irrespective of whether each was 
to take their own life, and it was D's 
intention, when entering into the 
agreement, to die pursuant to the 
agreement. 

7.6 The current law does not recognise the 'best interests 
of the victim' as a justification or excuse for killing. 
What it does, instead, is to acknowledge, to a very 
limited extent, that the consent of V can be relevant in 
the context of suicide pacts. However, the consent of V 
does not operate to justify the actions of the survivor of 
the suicide pact. Rather, combined with the fact that 
the survivor intended to kill him or herself as part of a 
pact, V's consent partially excuses the actions of the 
survivor. 



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7.7 Under the current law, the compassionate motives of 
the 'mercy' killer are in themselves never capable of 
providing a basis for a partial excuse. Some would say 
that this is unfortunate. On this view, the law affords 
more recognition to other less, or at least no more, 
understandable emotions such as anger (provocation) 
and fear (self-defence). Others would say that 
recognising a partial excuse of acting out of 
compassion would be dangerous. Just as a defence of 
necessity "can very easily become simply a mask for 
anarchy", so the concept of 'compassion' - vague in 
itself - could very easily become a cover for selfish or 
ignoble reasons for killing, not least because people 
often act out of mixed motives." 



55. In Inglis [2010] EWCA Crim 2637, [2011] 1 WLR 1110, Lord Judge CJ giving the 
judgment of the Court of Appeal Criminal Division quoted large parts of paragraphs 
7.4 to 7.7 of the Law Commission's report and said that the court could not improve 
on the Commission's "careful analysis of this profoundly sensitive issue" (paragraph 
40). Lord Judge also said (paragraph 37): 

"...we must underline that the law of murder does not 
distinguish between murder committed for malevolent reasons 
and murder motivated by familial love. Subject to well 
established partial defences, like provocation or diminished 
responsibility, mercy killing is murder." 

56. As to possible changes in the law, Lord Judge said (at paragraph 39): 

"However problems of mercy killing, euthanasia, and assisting 
suicide should be addressed must be decided by Parliament, 
which, for this purpose at any rate, should be reflective of the 
conscience of the nation. In this appeal we are constrained to 
apply the law as we find it to be. We cannot amend it or ignore 
it." 



57. There are statements to similar effect in earlier authorities. In Airedale NHS Trust v 
Bland [1993] AC 789 the House of Lords considered whether a health authority could 
lawfully discontinue life-sustaining treatment designed to keep a patient alive in a 
persistent vegetative state. The members of the Judicial Committee made it plain that 
euthanasia was not lawful at common law. Lord Mustill said at page 892: 

"7. Murder. 



It has been established for centuries that consent to the 
deliberate infliction of death is no defence to a charge of 
murder. Cases where the victim has urged the defendant to kill 
him and the defendant has complied are likely to be rare, but 
the proposition is established beyond doubt by the law on 
duelling, where even if the deceased was the challenger his 



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consent to the risk of being deliberately killed by his opponent 
does not alter the case. 

8. "Mercy Killing". 

Prosecutions of doctors who are suspected of having killed 
their patients are extremely rare, and direct authority is in very 
short supply. Nevertheless, that "mercy killing" by active 
means is murder was taken for granted in the directions to the 
jury in R v Adams (unreported), 8 April 1957, R v Arthur 
(unreported), 5 November 1981 and R v Cox (unreported), 18 
September 1992, and was the subject of direct decision by an 
appellate court in Barber v Superior Court of the State of 
California, 195 Cal. Rptr. 484 and has never so far as I know 
been doubted. The fact that the doctor's motives are kindly 
will for some, although not for all, transform the moral quality 
of his act, but this makes no difference in law. . . . 

9. Consent to "mercy killing". 

So far as I am aware no satisfactory reason has ever been 
advanced for suggesting that it makes the least difference in 
law, as distinct from morals, if the patient consents to or indeed 
urges the ending of his life by active means. The reason must 
be that, as in the other cases of consent to being killed, the 
interest of the state in preserving life overrides the otherwise 
all-powerful interests of patient autonomy." 

58. Lord Goff, at page 865, and Lord Browne-Wilkinson, at page 882, made statements to 
similar effect. 

59. The textbooks are equally unequivocal. Smith and Hogan's Criminal Law, 13 th 
Edition (2011), page 589, states: 

"English law admits of no defence of mercy killing or 
euthanasia." 

60. In Bland the judges were acutely aware of the profoundly difficult ethical questions 
which the case presented. They reached their decision on the legal basis that Anthony 
Bland's condition was such that the doctors no longer had a legal duty to continue 
invasive care and treatment, and accordingly the omission to continue such treatment 
would not be an unlawful omission. They emphasised two things: first, that the law 
drew a crucial distinction between an omission to maintain treatment and the 
administration of a lethal drug, however unsatisfactory such a distinction might seem 
to some people from an ethical viewpoint; and secondly, that it must be a matter for 
Parliament to decide whether the law should be changed, taking into account the 
complex humanitarian, ethical and practical considerations. Lord Goff said at page 
865: 

"I must however, stress... that the law draws a crucial 
distinction between cases in which a doctor decides not to 



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provide, or to continue to provide, for his patient treatment or 
care which could or might prolong his life, and those in which 
he decides, for example by administering a lethal drug, actively 
to bring the patient's life to an end. As I have already 
indicated, the former may be lawful, either because the doctor 
is giving effect to his patient's wishes by withholding the 
treatment or care, or even in certain circumstances in 
which... the patient is incapacitated from stating whether or not 
he gives his consent. But it is not lawful for a doctor to 
administer a drug to his patient to bring about his death, even 
though that course is prompted by a humanitarian desire to end 
his suffering, however great that suffering may be: see R v Cox 
(unreported), 18 September 1992. So to act is to cross the 
Rubicon which runs between on the one hand the care of the 
living patient and the other hand euthanasia - actively causing 
his death to avoid or to end his suffering. Euthanasia is not 
lawful at common law. It is of course well known that there are 
many responsible members of our society who believe that 
euthanasia should be made lawful; but that result could, I 
believe, only be achieved by legislation which expresses the 
democratic will that so fundamental a change should be made 
in our law, and can, if enacted, ensure that such legalised 
killing can only be carried out subject to appropriate 
supervision and control. It is true that the drawing of this 
distinction may lead to a charge of hypocrisy... But the law 
does not feel able to authorise euthanasia, even in 
circumstances such as these; for once euthanasia is recognised 
as lawful in these circumstances, it is difficult to see any logical 
basis for excluding it in others. " 

61. Lord Browne -Wilkinson said at pages 879-880: 

"On the moral issues raised by this case, society is not all of 
one mind... the position therefore, in my view, is that if the 
judges seek to develop new law to regulate the new 
circumstances, the law so laid down will of necessity reflect 
judges' views on the underlying ethical questions, questions on 
which there is a legitimate division of opinion... Where a case 
raises wholly new moral and social issues, in my judgment it is 
not for the judges to seek to develop new, all embracing, 
principles of law in a way which reflects the individual judges' 
moral stance when society as a whole is substantially divided 
on the relevant moral issues. Moreover, it is not legitimate for 
a judge in reaching a view as to what is for the benefit of the 
one individual whose life is in issue to take into account the 
wider practical issues as to allocation of limited financial 
resources or the impact on third parties of altering the time at 
which death occurs. 



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For these reasons, it seems to me imperative that the moral, 
social and legal issues raised by this case should be considered 
by Parliament. The judges' function in this area of the law 
should be to apply the principles which society, through the 
democratic process, adopts, not to impose their standards on 
society." 

62. Lord Mustill said at pages 887 and 891: 

"I will... abstain from debate about whether the proposed 
conduct will amount to euthanasia. The word is not a term of 
art, and what matters is not whether the declarations [that the 
hospital might lawfully discontinue treatment] authorise 
euthanasia, but whether they authorise what would otherwise 

be murder The conclusion that the declarations can be 

upheld depends crucially on a distinction drawn by the criminal 
law between acts and omissions, and carries with it inescapably 
a distinction between, on the one hand what is often called 
"mercy killing" where active steps are taken in a medical 
context to terminate the life of a suffering patient, and a 
situation such as the present where the proposed conduct has 
the aim for equally humane reasons of terminating the life of 
Anthony Bland by withholding from him the basic necessities 
of life. The acute unease which I feel about adopting this way 
through the legal and ethical maze is I believe due in an 
important part to the sensation that however much the 
terminologies may differ the ethical status of the two courses of 
action is for all relevant purposes indistinguishable. . . . Still, the 
law is there and we must take it as it stands. 



The whole matter cries out for exploration in depth by 
Parliament and then for the establishment by legislation not 
only of a new set of ethically and intellectually consistent 
rules, distinct from the general criminal law, but also of a sound 
procedural framework within which the rules can be applied to 
individual cases. ...Meanwhile, the present case cannot wait. 
We must ascertain the current state of the law and see whether 
it can be reconciled with the conduct which the doctors 
propose." 

63. Mr Bowen submitted that the Rubicon referred to by Lord Goff was crossed in the 
case of Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, and 
that the case shows that the court is able to fashion means of permitting doctors to act 
in a way which accords with the demands of humanity. The case concerned two baby 
girls, Jodie and Mary, who were born joined at the lower abdomen. Jodie was 
stronger than Mary. If Mary had been born a singleton, she would not have been 
viable and would have died shortly after birth. She remained alive because a common 
artery enabled Jodie to circulate sufficient oxygenated blood for Mary to survive for 
the time being. If the twins were surgically separated, the evidence was that Jodie 



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would have a good prospect of a healthy and normal life, but Mary would die within 
minutes. If no operation were performed, both twins would die within months 
because Jodie' s heart would not be able to sustain both Mary and herself in the longer 
term. 

64. The court granted an application by the hospital for a declaration that it could lawfully 
carry out separation surgery. The judges had no difficulty in concluding that it was 
better that one twin should have a normal life than that neither should survive the first 
few months of life. But there was a formidable question whether the operation, 
carried out in the knowledge that it was sure to result in Mary's immediate death, 
would amount to murder. The court considered three possible defences: lack of 
causation, lack of intent and necessity, overshadowed by a concept of quasi-self- 
defence. It concluded that the operation would be lawful, but the three members of 
the court expressed their reasoning in different ways. Ward LJ concluded that where 
a doctor was faced with conflicting duties towards two patients whose lives were at 
risk, it was lawful for him to adopt the course which would be the lesser of two evils. 
He did not use the language of necessity, but his reasoning may be said to fall within 
the doctrine. Brooke LJ conducted a lengthy and comprehensive analysis of the 
doctrine of necessity, at pages 219-238, and he concluded that the principle applied on 
the unusual facts of the case. He said at page 240: 

"According to Sir James Stephen there are three necessary 
requirements for the application of the doctrine of necessity: (i) 
the act is needed to avoid inevitable and irreparable evil; (ii) no 
more should be done than is reasonably necessary for the 
purpose to be achieved; (iii) the evil inflicted must not be 
disproportionate to the evil avoided. Given that the principles 
of modern family law point irresistibly to the conclusion that 
interests of Jodie must be preferred to the conflicting interests 
of Mary, I consider that all three of these requirements are 
satisfied in this case. 

Finally, the doctrine of the sanctity of life respects the integrity 
of the human body. The proposed operation would give these 
children's bodies the integrity which nature denied them." 

65. Robert Walker LJ concluded, at pages 258-259, that whereas it would be unlawful to 
kill Mary intentionally, that is, to undertake an operation with the primary purpose of 
killing her, Mary's death would not be the purpose of the operation. Although Mary's 
death would be foreseen as an inevitable consequence of an operation which was 
intended, and necessary, to save Jodie' s life, Mary's death would not be the intention 
of the surgery. She would die "because tragically her body, on its own, is not and 
never has been viable". His judgment therefore combined all three strands of 
necessity, lack of intent and lack of causation. 

66. The analysis that Mary's death would be regarded in the eyes of the law as caused by 
the fact that her body was not viable on its own comes from case law which has given 
rise to the so-called doctrine of double effect. 

67. The origin of the doctrine may be traced to the summing up of Devlin J in the case of 
Adams. Dr Adams was charged with the murder of an elderly patient by overdosing 



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her with morphia and heroin. His defence was that he had prescribed the drugs for 
the alleviation of pain. The trial was in 1957 and the case was unreported, but Lord 
Devlin wrote an account of it in 1985 in his book Easing the Passing. In his summing 
up, as he recounted it, he said: 

"If the first purpose of medicine, the restoration of health, can 
no longer be achieved, there is still much for a doctor to do, and 
he is entitled to do all that is proper and necessary to relieve 
pain and suffering, even if the measures he takes may 
incidentally shorten life. This is not because there is a special 
defence for medical men but because no act is murder which 
does not cause death. We are not dealing here with the 
philosophical or technical cause, but with the commonsense 
cause. The cause of death is the illness or the injury, and the 
proper medical treatment that is administered and that has an 
incidental effect on determining the exact moment of death is 
not the cause of death in any sensible use of the term. But. . .no 
doctor, nor any man, no more in the case of the dying than of 
the healthy, has the right deliberately to cut the thread of life." 

68. He also directed the jury that if the defendant did "some act capable, if the necessary 
intent was present, of being murderous," the prosecution had also to prove the intent 
to murder. 



69. The summing up therefore left it open to the jury to acquit Dr Adams, if they 
considered it possible that his purpose was the alleviation of pain, either on the basis 
that the death should be regarded as the consequence of the patient' s infirmity rather 
than the drugs which were intended to alleviate its consequences, or on the basis that 
there was a lack of intent. Both strands can be seen in Robert Walker LJ's analysis in 
Re A. 



70. A particular feature of Re A was the duty to protect Jodie' s life and the recognition 
that it was imperilled, albeit unintentionally, by the parasitic life of Mary. Ward LJ 
said at page 203: 

"Mary uses Jodie' s heart and lungs to receive and use Jodie' s 
oxygenated blood. This will cause Jodie' s heart to fail and 
cause Jodie' s death as surely as a slow drip of poison. How can 
it be just that Jodie should be required to tolerate that state of 
affairs? One does not need to label Mary with the American 
terminology which would paint her to be "an unjust aggressor", 
which I feel is wholly inappropriate language for the sad and 
helpless position in which Mary finds herself. I have no 
difficulty in agreeing that this unique happening cannot be said 
to be unlawful. But... I can see no difference in essence 
between... resort to legitimate self-defence and the doctors 
coming to Jodie' s defence and removing the threat of fatal 
harm to her presented by Mary's draining her life blood. The 
availability of such a plea of quasi-self-defence, modified to 
meet the quite exceptional circumstances nature has inflicted on 
the twins, makes intervention by the doctors lawful." 



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7 1 . Similarly Robert Walker LJ said at page 255: 

"There is on the facts of this case some element of protecting 
Jodie against the unnatural invasion of her body through the 
physical burden imposed by her conjoined twin. That element 
must not be overstated. It would be absurd to suggest that 
Mary, a pitiful and innocent baby, is an unjust 
aggressor... Nevertheless, the doctors' duty to protect and save 
Jodie' s life if they can is of fundamental importance to the 
resolution of this appeal." 

72. Those highly unusual features, which were critical in the case of Re A, are absent 
from the present case. If in this case a doctor were to administer a lethal drug to 
Tony, there could be no defence to a charge of murder based on lack of causation, 
lack of intent or quasi-self-defence. However, Mr Bowen relies on the case for the 
broader argument that the court was willing to apply the doctrine of necessity in a 
new situation and, in doing so, was prepared to consider which was the lesser of two 
evils. He submitted that on a humane application of Sir James Stephen's test, which 
Brooke LJ followed, the defence of necessity should be potentially available to a 
doctor who agreed to terminate Tony's life at Tony's request. 

73. In The Criminal Law: The General Part (2 n Ed 1961) page 728, Glanville Williams 
observed that "The peculiarity of necessity as a doctrine of law is the difficulty or 
impossibility of formulating it with any approach to precision". He added: 

"It is in reality a dispensing power exercised by the judges 
where they are brought to feel that obedience to the law would 
have endangered some higher value. Sir William Scott said in 
The Gratitudine (1801) 165 ER at 459: 

"The law of cases of necessity is not likely to be well 
furnished with precise rules; necessity creates the law; it 
supersedes rules; and whatever is reasonable and just in such 
cases, is likewise legal. It is not to be considered a matter of 
surprise, therefore, if much instituted rule is not to be found 
on such subjects." " 

74. In a system governed by the rule of law, any such dispensing power requires great 
caution. It should not be used as a means of introducing major and controversial 
policy change. Re A was a case of highly exceptional facts, where an immediate 
decision was required. Tony's condition is tragic but sadly not unfamiliar. 

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide 
whether to change the law on euthanasia are compelling and should be followed by 
this court. The reasons have to do with competence, constitutionality and control of 
the consequences. 

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of 
moral, medical and practical considerations. The issues were considered in depth and 
from many viewpoints by the Select Committee under the chairmanship of Lord 
Mackay. The committee considered that essentially there was a conflict between 



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different valuable principles, which were accorded different priorities by different 
protagonists. After considering the report, a majority of the House of Lords voted 
against changing the law. The Falconer Commission has recently recommended that 
Parliament should reconsider the subject. 

77. In its reflections on the evidence which it received, the Falconer Commission 
commented, at page 283: 

"As chapter 2 of this report demonstrated, the evidence the 
Commission received presented a huge range of extremely 
powerful and nuanced arguments representing the many ethical 
dimensions encompassed by the assisted dying debate. These 
ethical principles included the value of individual autonomy, 
the "intrinsic" or "self-determined" value of human life, the 
importance of a compassionate response to suffering, the need 
to protect vulnerable people, the importance of fighting societal 
discrimination towards disabled people and doctors' (in some 
people's view) conflicting responsibilities to relieve suffering 
and preserve life. As the evidence presented in chapter 2 
demonstrated, we found on inspection of the evidence that 
every single ethical principle that was put forward has its 
equally vociferous opposite." 

78. A court hearing an individual case, concentrating rightly and inevitably on the dire 
circumstances of the claimant, is not in a position to decide such broader questions, 
but its decision would create a precedent which would affect many other cases. 

79. As to constitutionality, it is one thing for the courts to adapt and develop the 
principles of the common law incrementally in order to keep up with the requirements 
of justice in a changing society, but major changes involving matters of controversial 
social policy are for Parliament. There is ample authority for that proposition. Lord 
Reid said in Shaw v DPP [1962] AC 220, 275: 

"Where Parliament fears to tread it is not for the courts to rush 
in." 

80. In Myers v DPP [1965] AC 1001, 1021, a case about the law of hearsay, Lord Reid 
said: 

"I have never taken a narrow view of the functions of this 
House as an appellate tribunal. The common law must be 
developed to meet changing economic conditions and habits of 
thought, and I would not be deterred by expressions of opinion 
in this House in old cases. But there are limits to what we can 
or should do. If we are to extend the law it must be by the 
development and application of fundamental principles. ...And 
if we do in effect change the law, we ought in my opinion only 
to do that in cases where our decision will produce some 
finality or certainty." 

81. In Abbott v The Queen [1977] AC 755, 767, a case about duress, Lord Salmon said: 



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"Judges have no power to create new criminal offences; nor in 
their Lordships' opinion, for reasons already stated, have they 
the power to invent a new defence to murder which is entirely 
contrary to fundamental legal doctrine accepted for hundreds of 
years without question. If a policy change of such a 
fundamental nature were to be made it could, in their 
Lordships' view, be made only by Parliament. Whilst their 
Lordships strongly uphold the right and indeed the duty of 
judges to adapt and develop the principles of the common law 
in an orderly fashion they are equally opposed to any 
usurpation by the courts of the functions of Parliament." 

82. In C (A Minor) v DPP [1996] 1 AC 1, 28 Lord Lowry said: 

"It is hard, when discussing the propriety of judicial law- 
making, to reason conclusively from one situation to 
another. . .1 believe, however, that one can find in the authorities 
some aids to navigation across an uncertainly charted sea. (1) 
If the solution is doubtful, the judges should beware of 
imposing their own remedy. (2) Caution should prevail if 
Parliament has rejected opportunities of clearing up a known 
difficulty or has legislated, while the leaving the difficulty 
untouched. (3) Disputed matters of social policy are less 
suitable areas for judicial intervention than purely legal 
problems. (4) Fundamental legal doctrines should not be 
lightly set aside. (5) Judges should not make a change unless 
they can achieve finality and certainty." 

83. Lord Lowry considered, but distinguished, the case of R v R [1992] 1 AC 599, in 
which the House of Lords upheld a conviction for marital rape, rejecting as outmoded 
the doctrine of so called implied consent, although earlier attempts to abolish it by 
legislation had failed. He observed, at page 38, that the decision in R was based on a 
very widely accepted modern view of marital rape and it derived support from a group 
of up-to-date decisions. Further, the principle rejected in R stood on a dubious legal 
foundation. 

84. A decision by the court to alter the common law so as to create a defence to murder in 
the case of active voluntary euthanasia would be to introduce a major change in an 
area where there are strongly held conflicting views, where Parliament has rejected 
attempts to introduce such a change, and where the result would be to create 
uncertainty rather than certainty. To do so would be to usurp the role of Parliament. 

85. As to control of the consequences, it is hard to imagine that Parliament would legalise 
any form of euthanasia without a surrounding framework regarding end of life care 
and without procedural safeguards. The Falconer Commission observed at pages 287- 
288: 

"It was not the purpose or objective of the Commission to 
decide whether the law should be changed to make assisted 
dying legally possible... It is for Parliament to decide on behalf 
of the people whether it would be in the interests of society as a 



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whole to implement a safeguarded system that would provide 
this option, and there is a clear need for more inclusive public 
debate to inform this process. In particular, the evidence the 
Commission has received has made it clear that the issue of 
assisted dying cannot be viewed in isolation from the need for 
adequate health and social care, or from the considerable 
concerns from many people that vulnerable people could be put 
at risk of abuse or indirect social pressure to end their lives, if 
such an option was to become available. Therefore if an 
assisted dying framework is to be implemented in the future it 
must have these concerns at its heart and its purpose must be 
viewed as providing people with access to high quality end of 
life care, and protecting vulnerable people from any kind of 
social pressure at the same time as providing people with 
greater choice and control over how and when they die." 

86. It would be impossible for a court to introduce, still less monitor, any such regime. 

87. For all of those reasons it would be wrong for the court to depart from the long 
established position that voluntary euthanasia is murder, however understandable the 
motives may be, unless the court is required to do so by article 8. I would refuse the 
application to introduce the evidence received by Smith J in Carter v Canada, 
because it would not be right for the court to depart from the law as it presently is on 
the basis of its views about such evidence. 

Article 8 

88. The foundation of Mr Bowen's argument is that article 8 protects two values which 
are the birthright of every person - a right to personal autonomy, or self- 
determination, and a right to dignity. In Omega Spielhallen-und 
Automatenaufstellungs-GmbH v Oberburgermeisterin der Bundesstadt Bonn [2005] 1 
CMLR 5 the Court of Justice, at paragraph 34, recognised that the Community legal 
order strives to ensure respect for human dignity as a general principle of law and it 
referred with approval the opinion of the Advocate General on this topic at AG82- 
AG91. In her opinion the Advocate General observed that the concept of human 
dignity is a generic concept, for which there is not a traditional legal definition, but 
that respect for human dignity is an integral part of the general legal tenets of 
Community law. This is a particularly important factor of the present case, Mr 
Bowen submitted, because Tony's stroke has condemned him to living in conditions 
in which he is deprived of all usual dignity and the law has deprived him of the right 
to say that enough is enough. For Tony, autonomy and dignity, humanity and justice 
require that he should be permitted to end his life; and it is submitted that article 8 
gives him the right to do so. 

89. The counter arguments are also based on considerations of morality and compassion, 
as well as practical considerations, but they relate in the main to the consequences 
upon other members of society if Tony's claim succeeds. With that introduction to 
the article 8 debate, I turn to the leading cases. They are cases about assisted suicide, 
not euthanasia, but Mr Bowen submitted that the developing Strasbourg jurisprudence 
nevertheless supports his argument. 



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Q on the appn of AM v DPP 

R (Pretty) v DPP [2001] UKHL 61, [2002] 1 AC 800 

90. Mrs Pretty suffered from motor neurone disease. She wanted to be able to enlist her 
husband's help to commit suicide. He was willing to do so, but only if he could be 
sure that he would not be prosecuted under section 2. The DPP refused to give such 
an undertaking. She applied for judicial review of his refusal to do so, or alternatively 
for a declaration that section 2 was incompatible with article 8. 

91. Lord Bingham said, at paragraph 2, that the Appellate Committee was not a 
legislative body, nor was it entitled or fitted to act as a moral or ethical arbiter. The 
questions whether the terminally ill, or others, should be free to seek assistance in 
taking their own lives were of great social, ethical and religious significance, but it 
was not the task of the Committee to weigh or evaluate them. Its task was to apply 
the law of the land as it understood it to be. 

92. He referred, at paragraph 9, to two principles which he described as "deeply 
embedded in English law". The first was the distinction between the taking of one's 
own life by one's own act and the taking of life through the intervention or with the 
help of a third party. The former was permissible; the latter was not. The second 
distinction was between the cessation of life-saving or life-prolonging treatment on 
the one hand and the taking of action lacking medical, therapeutic or palliative 
justification but intended solely to terminate life on the other. Lord Bingham 
continued: 

"While these distinctions are in no way binding on the 
European Court of Human Rights there is nothing to suggest 
that they are inconsistent with the jurisprudence which has 
grown up around the Convention. It is not enough for Mrs 
Pretty to show that the United Kingdom would not be acting 
inconsistently with the Convention if it were to permit assisted 
suicide; she must go further and establish that the United 
Kingdom is in breach of the Convention by failing to permit it 
or would be in breach of the Convention if it did not permit it. 
Such a contention is in my opinion untenable." 

93. Lord Bingham held, at paragraphs 26 to 30, that article 8 was not engaged by section 
2; but that, if article 8 was engaged, section 2 was not incompatible with it. 

94. Lord Bingham also upheld the DPP's refusal to give the undertaking which had been 
requested of him. He said, at paragraph 39, that the DPP had no power to make what 
would have been "a proleptic grant of immunity from prosecution". He continued: 

"The power to dispense with and suspend laws and the 
execution of laws without the consent of Parliament was denied 
to the Crown and its servants by the Bill of Rights 1689 (1 Will 
& Mary, sess 2, c 2)." 

95. The other members of the Appellate Committee agreed with Lord Bingham's 
reasoning. 



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Pretty v United Kingdom (2002) 35 EHRR 1 

96. The Strasbourg court rejected Mrs Pretty's complaint that there had been a violation 
of article 8. The court disagreed with the House of Lords' opinion that article 8 was 
not engaged, but agreed that it was not breached. 

97. As to the engagement of article 8, the court said: 

"65. The very essence of the Convention is respect for 
human dignity and human freedom. Without in any 
way negating the principle of sanctity of life protected 
under the Convention, the Court considers that it is 
under Article 8 that notions of the quality of life take 
on significance. In an era of growing medical 
sophistication combined with longer life expectancies, 
many people are concerned that they should not be 
forced to linger on in old age or in states of advanced 
physical or medial decrepitude which conflict with 
strongly held ideas of self and personal identity. 



67. The applicant in this case is prevented by law from 
exercising her choice to avoid what she considers will 
be an undignified and distressing end to her life. The 
Court is not prepared to exclude that this constitutes an 
interference with her right to respect for private life as 
guaranteed under Article 8(1) of the Convention. It 
considers below whether this interference conforms 
with the requirements of the second paragraph of 
Article 8." 

98. On the question of compliance, the court said: 

"70. According to the Court's established case law, the 
notion of necessity implies that the interference 
corresponds to a pressing social need and, in particular, 
that it is proportionate to the legitimate aim pursued; in 
determining whether an interference is "necessary in a 
democratic society", the Court will take into account 
that a margin of appreciation is left to the national 
authorities, whose decision remains subject to review 
by the Court for conformity with the requirements of 
the Convention. The margin of appreciation to be 
accorded to the competent national authorities will 
vary in accordance with the nature of the issues and the 
importance of the interests at stake. 



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74. ...The law in issue in this case, section 2 of the 1961 
Act, was designed to safeguard life by protecting the 
weak and vulnerable and especially those who are not 
in a condition to take informed decisions against acts 
intended to end life or to assist in ending life. 
Doubtless the condition of terminally ill individuals 
will vary. But many will be vulnerable and it is the 
vulnerability of the class which provides the rationale 
for the law in question. It is primarily for States to 
assess the risk and the likely incidence of abuse if the 
general prohibition on assisted suicides were relaxed 
or if exceptions were to be created. Clear risks of 
abuse do exist, notwithstanding arguments as to the 
possibility of safeguards and protective procedures. 



76. The Court does not consider therefore that the blanket 
nature of the ban on assisted suicide is 
disproportionate. The Government has stated that 
flexibility is provided for in individual cases by the 
fact that consent is needed from the DPP to bring a 
prosecution and by the fact that a maximum sentence 
is provided, allowing lesser penalties to be imposed as 
appropriate... It does not appear to be arbitrary to the 
Court for the law to reflect the importance of the right 
to life, by prohibiting assisted suicide while providing 
for a system of enforcement and adjudication which 
allows due regard to be given in each particular case to 
the public interest in bringing a prosecution, as well as 
to the fair and proper requirements of retribution and 
deterrence. 

77. Nor in the circumstances is there anything 
disproportionate in the refusal of the DPP to give an 
advance undertaking that no prosecution would be 
brought against the applicant's husband. Strong 
arguments based on the rule of law could be raised 
against any claim by the executive to exempt 
individuals or classes of individuals from the operation 
of the law." 

99. The comments in paragraph 77 were a clear reference to Lord Bingham's comments 
on the impropriety of the DPP acting in a way which would amount to a dispensation 
with the law, without the consent of Parliament. 

100. There was much argument in the present case, as there was in Purdy to which I will 
come, about the final sentence of paragraph 76. I would observe at this stage that 
paragraphs 76 and 77 contained three points: 



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1. 



A blanket ban on assisted suicide was not 
disproportionate in the view of the court. 



2. 



Nor was it "arbitrary" to reflect the importance of life 
by prohibiting assisted suicide, while providing a 
system of enforcement which allowed due regard to be 
given in each particular case, to the public interest, the 
requirements of deterrence and such like. 



3. 



Strong objection could be raised against any claim by 
the executive to exempt in advance any individual or 
classes of individuals from the operation of the law. 
(Emphasis added) 



R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345 

101. Mrs Purdy suffered from multiple sclerosis. She expected that a time would come 
when she would regard her life as unbearable and would want to end it while still 
physically able to do so. By that stage she would need her husband's assistance to 
travel to a country where assisted suicide was lawful. He was willing to help her, but 
she was concerned about his risk of prosecution under section 2. She asked the DPP 
to set out the factors which he would take into account in deciding whether to bring a 
prosecution, but he declined to be drawn. She sought judicial review of his refusal on 
the ground that, without such clarification, the law relating to assisted suicide did not 
satisfy the article 8(2) requirements of accessibility and foreseeability. The House of 
Lords agreed and made the order which led to the DPP making his policy statement. 

102. In his argument on behalf of Mrs Purdy, Lord Pannick QC addressed the 
constitutional concerns voiced by Lord Bingham and the Strasbourg court about the 
impropriety of the executive dispensing with the law, or exempting classes of 
individuals from its operation. He submitted (page 305): 



103. From that starting point, Lord Pannick submitted that without an offence-specific 
policy as to the factors to be taken into account when the DPP decided whether to 
consent to a prosecution for assisting suicide, the prohibition in section 2 was not "in 
accordance with the law". The Court of Appeal had been wrong, Lord Pannick said 
(at page 355), to understand Mrs Purdy to be wanting the DPP to promulgate a policy 
which would effectively discount the risk of her husband being prosecuted. She was 
asking for no more than the publication of an offence- specific policy setting out the 
factors that he would take into account. 

104. The judgments contain a narrower and a broader strand of reasoning of a significantly 
different nature. The narrower line of reasoning reflected the argument advanced by 
Lord Pannick. The scope of the law of assisted suicide was for Parliament to decide, 
not for the court or the DPP, but in order for the law to comply with the Convention 
requirements of accessibility and foreseeability it was necessary for the DPP to clarify 



"The Director has no power to adopt a policy that he will not 
prosecute, but he does have power to adopt and publish a policy 
setting out the most significant factors that would guide his 
decision." 



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the factors which he would take into account in giving his consent for a prosecution. 
How he chose to do so was a matter for the DPP. 

105. The broader line of reasoning involved recognising that there would be some cases in 
which the existence of a risk of prosecution would violate the would-be suicide's right 
of autonomy under article 8, and that it was necessary for the DPP to formulate a 
policy aimed at preventing such violation, by restricting those cases in which he 
would give his consent to ones which would not involve a breach of article 8. 

106. Lord Hope adopted the narrower line. (Without setting out lengthy extracts from his 
judgment, I would refer to paragraphs 26-27, 40-43 and 53-56.) Lord Neuberger also 
followed the narrower line of reasoning, as I read his judgment (paras 96, 101 and 
106), although he also said that he agreed with the more fully expressed reasons of 
Lady Hale and Lord Brown. Lord Phillips agreed that Mrs Purdy's appeal should be 
allowed for the reasons which were common to the other members of the Committee 
(paragraph 1). 

107. The broader line of reasoning appears in parts of the speeches of Lady Hale and Lord 
Brown. 

108. Lady Hale, at paragraph 63, interpreted the final sentence of paragraph 76 of the 
Strasbourg's court's judgment in Pretty as indicating that the Strasbourg court 
contemplated that there would be cases in which the deterrent effect of a risk of 
prosecution would be a violation of a would be suicide's rights under article 8. On 
that premise, and on the associated premise that the justification for a blanket ban 
depended on the flexibility of its operation, it followed that the prohibition could not 
be in accordance with the law unless there was greater clarity about the factors which 
the DPP would take into account. In providing the necessary clarification, the object 
of the exercise should be to focus upon the features which would distinguish those 
cases where deterrence would be disproportionate, i.e. would violate a person's article 
8 rights, from those in which it would not (paragraph 64). 

109. On Lady Hale's approach, the problem with the law was not simply one of 
accessibility, but was more fundamental, namely that section 2 was potentially 
incompatible with article 8 because of its blanket nature, and that in order to make it 
compliant with article 8 it was necessary for the DPP to produce guidelines which 
would limit its scope. 

1 10. Lord Brown began his opinion by saying, at paragraph 70: 

"My Lords, there are not many crimes of which it can be said 
that their discouragement by the state may violate the 
fundamental human rights of others. Yet undoubtedly that is 
true in certain circumstances of the conduct criminalised by 
section 2(1) of the Suicide Act 1961." 

111. He expressed the view, at paragraph 74, that although the Strasbourg court in Pretty 
had said that it did not consider that the blanket nature of the ban on assisted suicide 
was disproportionate, it was implicit in the court's reasoning 



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". . .that in certain cases, not merely will it be appropriate not to 
prosecute, but a prosecution under section 2(1) would actually 
be /^appropriate." (Original emphasis) 

1 12. Lord Brown expanded on the point at paragraph 75, saying that: 

".. .Strasbourg clearly appears to have recognised that in certain 
circumstances it will be wrong in principle to prosecute A for 
assisting B to commit suicide, because to do so would 
unjustifiably deter those in A's position from enabling those in 
B's position to exercise their article 8(1) right to self 
determination..." 

1 13. Lord Brown concluded at paragraph 86: 

"What to my mind is needed is a custom-built policy statement 
indicating the various factors for and against prosecution, 
factors designed to distinguish between those situations in 
which, however tempted to assist, the prospective aider and 
abettor should refrain from doing so, and those situations in 
which he or she may fairly hope to be, if not commended, at the 
very least be forgiven, rather than condemned, for giving 
assistance." 

114. The question arises whether Lady Hale's and Lord Brown's interpretation of the 
Strasbourg court's judgment in Pretty formed a necessary part of the reasoning in 
Purdy, upon which the mandatory order issued by the court was made, so that this 
court is bound by that reasoning. Mr Bowen submitted that it did. Mr Havers, who 
also relied on the observations of Lady Hale and Lord Brown in support of Martin's 
case, acknowledged that he could not go that far. I do not accept Mr Bowen' s 
submission. The narrower line of reasoning had the support of all the members of the 
Appellate Committee and was all that was necessary to make the order which the 
court issued. 

115. That conclusion does not preclude Mr Bowen from submitting that the broader 
reasoning is persuasive. Mr Bowen submitted that Lady Hale and Lord Brown were 
right, and that Tony's case is one in which he should be entitled to decide when his 
life should be ended. On that premise Mr Bowen argued that since nature has 
deprived Tony of the ability to carry out his decision, the only way that his right can 
be exercised is through an act of voluntary euthanasia. 

Haas v Switzerland (2011) 53 EHRR 33 

1 16. The applicant lived in Switzerland, where assisted suicide is permitted. He had a long 
history of mental illness and wished to commit suicide. No doctor was willing to help 
him to do so. He complained about the refusal of the Swiss authorities to permit him 
to obtain lethal drugs, without a prescription, in a sufficient quantity to enable him to 
end his life in a dignified manner. He contended that the authorities thereby violated 
his right under article 8 to decide when and how to end his life. The court held that 
there was no violation. 



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117. The court accepted (paragraph 51) that the right of an individual to decide how and 
when to end his life, provided that he is in a position to make up his own mind in that 
respect, is one aspect of the right to respect for private life within the meaning of 
article 8. The question whether there has been a violation depends on article 8(2). As 
to that, the court said at paragraph 55: 

"The Convention and the Protocols thereto must be interpreted 
in the light of the present-day conditions... In Switzerland, 
under art 115 of the Criminal Code, incitement to commit or 
assistance with suicide are only punishable where the 
perpetrator of such acts commits them for selfish motives. By 
comparison, the Benelux countries in particular have 
decriminalised the act of assisting suicide, but only in well- 
defined circumstances. Certain other countries only allow 
"passive" acts of assistance. The vast majority of Member 
States, however, appear to place more weight on the protection 
of an individual's life than on the right to end one's life. The 
Court concludes that the states have a wide margin of 
appreciation in that respect." 

The effect of the Strasbourg authorities 

118. There is no Strasbourg authority which supports the proposition that a blanket ban on 
voluntary euthanasia is incompatible with article 8. Currently the Benelux countries 
are the only Council of Europe Member States which permit voluntary euthanasia, 
and in Haas the court concluded that the states have a wide margin of appreciation in 
this area. 



1 19. Where a matter is within the margin of appreciation left to individual states, it is also 
up to the state to determine which organ of the state should decide what legal regime 
to adopt. Mr Bowen argued that the court should not leave the matter to Parliament. 
He cited Re G (Adoption): (Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173, 
as a case where the court held that secondary legislation was incompatible with the 
Convention, although the Strasbourg court had accepted that a similar provision 
adopted by another state was within its margin of appreciation. That was a case far 
removed from the present, in which the order in question discriminated against a 
minority. The court's decision did not create uncertainty, nor was it liable to have 
wider consequences beyond the court's ability to evaluate. 

120. In Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, Lord 
Bingham said at paragraph 44: 

"The effective implementation of the Convention depends on 
constructive collaboration between the Strasbourg court and the 
national courts of member states. The Strasbourg court 
authoritatively expounds the interpretation of the rights 
embodied in the Convention and its protocols, as it must if the 
Convention is to be uniformly understood by all member states. 
But in its decisions on particular cases the Strasbourg court 
accords a margin of appreciation, often generous, to the 
decisions of national authorities and attaches much importance 



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to the peculiar facts of the case. Thus it is for the national 
authorities, including national courts particularly, to decide in 
the first instance how the principles, expounded in Strasbourg 
should be applied in the special context of national legislation, 
law, practice and social and other conditions." 

121. The only general principles which the Strasbourg court has expounded are that the 
right of an individual to decide how and when to end his life is an aspect of the right 
of respect for private life within article 8 and that states have a wide margin of 
appreciation in this area. For reasons which I have already given, I am satisfied that 
the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and 
others said in Purdy that Parliament should be the law maker in the area of assisted 
suicide. Furthermore, since it has been held by both the House of Lords and the 
Strasbourg court that a blanket ban on assisted suicide is not incompatible with article 
8, the same must apply with added force to the ban on voluntary euthanasia. 

122. I conclude that it would be wrong for this court to hold that article 8 requires 
voluntary euthanasia to afford a possible defence to murder. To do so would be to go 
far beyond anything which the Strasbourg court has said, would be inconsistent with 
the judgments of the House of Lords and the Strasbourg court in Pretty, and would be 
to usurp the proper role of Parliament. 

Is the DPP under a legal duty to provide further clarification of his policy? 

123. The requirement of accessibility is part of Convention jurisprudence about what is a 
"law". In Sunday Times v UK (1979) 2 EHRR 245, at paragraph 49, the Strasbourg 
court said that: 



". . .a norm cannot be regarded as a "law" unless it is formulated 
with sufficient precision to enable the citizen to regulate his 
conduct: he must be able - if need be with appropriate advice - 
to foresee, to a degree that is reasonable in the circumstances, 
the consequences which a given action may entail. Those 
consequences need not be foreseeable with absolute certainty: 
experience shows this to be unobtainable. Again, whilst 
certainty is highly desirable, it may bring in its train excessive 
rigidity and the law must be able to keep pace with changing 
circumstances." 



124. In Purdy Lord Hope said, at paragraph 41, that in this context the word "law" is to be 
understood "in its substantive sense, not its formal one". The law for this purpose 
goes beyond the mere words of the statute. He added: 

"The requirement of foreseeability will be satisfied where the 
person is able to foresee, if need be with the appropriate legal 
advice, the consequences which a given action may entail. A 
law which confers a discretion is not in itself inconsistent with 
this requirement, provided the scope of the discretion and the 
manner of its exercise are indicated with sufficient clarity to 
give the individual protection against interference which is 
arbitrary." 



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125. Applying the principle to Martin's circumstances, Mr Havers submitted that the 
DPP's policy will be defective unless it enables Martin, and those who might be 
willing to assist him to commit suicide, to know as a matter of probability whether a 
particular course of conduct will result in their prosecution. It is not enough, he 
submitted, that they would know from the policy that they would face a real risk of 
prosecution. He would therefore rephrase Lord Hope's statement that the requirement 
of foreseeability "will be satisfied where the person concerned is able to foresee, if 
need be with appropriate legal advice, the consequences which a given action may 
entail" so as to read "will not be satisfied unless the person concerned is able to 
foresee, if need be with appropriate legal advice, the consequences which a given 
action will probably entail." 

126. This submission was an advance on the way in which the matter was put in Martin's 
skeleton argument (at paragraph 85). There it was submitted that the principle to be 
distilled from the case law was that "the person concerned must be able to determine 
adequately, with legal advice if necessary, whether or not prosecution under section 
2(1) of the 1961 Act is a real risk arising from a given course of conduct". I mention 
that not in a spirit of criticism, but because it highlights a point of some significance. 

127. Mr Havers submitted that the DPP's policy provided the necessary degree of clarity 
for what he described as "class 1 helpers", that is, family members and friends who 
were willing to provide assistance out of compassion. Debbie Purdy's husband fell 
within that class, and so would Martin's wife if she were willing to help. However, 
the policy was defective in that it failed to give adequate clarity as to another group, 
which he described as "class 2 helpers", comprising individuals who were willing to 
act selflessly, with compassion and without suspect motives, but who had no personal 
connection with the individual who wished to end his or her life. "Class 2 helpers" 
might be professionals, carers or others. It is at once apparent that class 2 helpers are 
not a ubiquitous class. 

128. Mr Havers observed that in relation to class 2 helpers some of the factors identified in 
the policy might tend to favour prosecution, but others might tend against prosecution. 
The fact that the suspect was acting as a health care professional, or was providing 
assistance in the course of paid work or gave encouragement or assistance to more 
than one victim who were not known to each other, would all be factors favouring 
prosecution. On the other hand, the same suspect might be motivated wholly by 
compassion, have sought to dissuade the victim from taking the course of action 
which resulted in his or her suicide and eventually acted in a way which might be 
characterised as reluctant encouragement or assistance in the face of a determined 
wish on the part of the victim to commit suicide. Those factors would all tend against 
prosecution. The policy gave no indication how the DPP would carry out a balancing 
exercise in a case where some factors tended in favour of prosecution and others 
tended against prosecution. 

129. For those reasons Mr Havers submitted that further clarification was required. 
Without it, the position of those who might be willing to help Martin, including 
particularly health care professionals and solicitors (who might be able to help him go 
about the process of engaging people to assist him with his suicide), was too uncertain 
to satisfy the requirements of the Convention. 



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130. In considering these criticisms, it is right to understand the thinking which underlay 
the DPP' s approach to the task which he had been set. In his evidence to the Falconer 
Commission, Mr Starmer said: 

"The approach we took was this: the law makes it an offence to 
assist suicide. It then obviously gives the prosecutor discretion. 
We thought that if the law remains unamended and in that 
form, it was important to distinguish between as it were one off 
acts of support or compassion and those that were engaged in 
the delivery of professional services or a business that would 
routinely. . .bring them into conflict with the law, because of the 
broad prohibition on assisted suicide. I mean, I appreciate not 
everyone would agree with that distinction but if you do have a 
broad based offence, it's one thing to say, "this is as it were, a 
one-off compassionate act" compared with "this is the 
provision of a service or a business" which inevitably involves 
a breach of the law and I think . . .if we didn't put that factor in, 
Parliament might say we are really undermining the prohibition 
on assisted suicide." 

131. Mr Starmer also demurred at the suggestion that his policy should be seen as in some 
way schematic. He said: 

"We want to be transparent about the factors, hence the policy, 
and apply it on a case by case basis. We want to avoid being 
too schematic because it's not for me or the CPS to determine 
what the law should be. The law is clear and we're simply 
being given discretion in individual cases... What I think would 
be wrong, what I want to resist is saying: "schematically this is 
what we're trying to achieve", because that is not for me." 

132. He was asked whether setting out factors for and factors against prosecution was any 
different from setting out rules. His reply is instructive: 

"I think it is, because ultimately it's a discretion; this is simply 
saying what are the sort of factors we're likely to take into 
account. That is different from saying: "schematically these are 
the cases we are going to prosecute and these are the cases 
we're not going to prosecute". I appreciate that the two are not 
at opposite ends of the continuum by any stretch of the 
imagination. But they are conceptually different and I have 
avoided any attempt I hope to be schematic about this and 
insisted that every case has to be decided on its own facts. 
These are factors to indicate to people what is likely to be taken 
into account one way or the other, with the overriding proviso 
that no one factor outweighs others. We don't simply weigh 
them all up and we will decide each case on a case-by-case 
basis. We're trying to avoid... the schematic approach does 
risk, unless it's very carefully constructed, undermining 
Parliament's intention that this should be an offence." 



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133. It is clear from his answers that the DPP was not seeking to identify types of case in 
which he would adopt a policy of non-prosecution based on a consideration of the 
rights of the victim. That would have been to introduce a de facto form of justifiable 
homicide. He took the view that any such exercise should be for Parliament; and that 
while Parliament maintained a blanket ban on assisted suicide, he should not adopt a 
policy which might appear to undermine the law. On the other hand, he recognised 
that there would be cases in which the public interest did not require prosecution, not 
because the homicide was justifiable or to encourage its repetition in other cases, but 
because it was a one off act of compassion. As Mr Starmer recognised, there is a 
conceptual difference between adopting the latter approach and carving out from the 
law a class of cases in which he would not enforce the law as a matter of general 
policy. The factors identified in the policy statement were intended to reflect this 
distinction. 

134. That was in my view a constitutionally proper approach for him to adopt. It was 
consistent with the terms of the order in Purdy, which were that he should identify 
facts and circumstances which he would take into account in deciding whether to 
consent to prosecution. 

135. Concern has been expressed that the effect, although not the intention, of the DPP's 
policy has been to dispense with the law in a category of cases. The Falconer 
Commission expressed its concern at pages 285-286: 

"These guidelines are exceptional as they prescribe the 
circumstances in which the public interest test will be used, not 
with a view to deal with the exceptional or unexpected case, but 
in order to deal with the most common manifestation of the 
conduct that is criminalised by section 2(1) of the Suicide Act 
1961. There is no doubt that the DPP has a public interest 
discretion not to bring a prosecution even if he is satisfied that 
the evidential test is satisfied. But that public interest test is 
normally used to deal with the exceptional individual case. By 
contrast, the guidelines provide a reason not to prosecute that 
applies equally to all. Or, to put it another way, they take a 
whole identifiable category of case out the ambit of the 
criminal justice process. 

Currently, the decision about whether the law should be 
changed, in a contested area (contested in the sense that there 
are strong views for and against law change) is not being made 
by the law-makers (Parliament), but by the DPP. He has done 
his best in consulting the public and reflecting what he believes 
to be society's wishes in relation to prosecutions. However, the 
effect of being forced to issue guidelines by the judgment of the 
House of Lords in the Purdy case means the DPP has to decide 
on the extent of the law, and to whom it applies. The change is 
therefore piecemeal; it comes after no coherent public debate, 
and is driven by a response to individual cases rather than by a 
wider strategic consideration of the aims of the policy that 
society wishes to adopt. 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



Some of the evidence that was put to the Commission argued 
that the DPP policy has brought sufficient resolution to the 
issue of assisted suicide... 

However, a much larger body of evidence put to the 
Commission highlighted the many problems with this approach 
of legal prohibition of assisted suicide combined with a lenient 
policy on prosecution, as outlined in the DPP policy. First, the 
question of when cases of assisted suicide should be prosecuted 
is now being determined by the exercise of a discretion by a 
well-meaning official, the DPP, applying general guidelines 
rather than the letter of the law, subject to a discretion not to 
prosecute in exceptional cases. Thus the question of whether a 
category of persons will be prosecuted depends on the view of 
one official and that view could change when the DPP changes. 
The essence of the rule of law is that our society is "ruled by 
laws not men". The situation reached with the guidelines is 
that this basic tenet of the rule of law is broken. " 



136. This is strong criticism. John McGuinness QC on behalf of the DPP submitted that it 
was not correct to say that he had taken "a whole identifiable category of case out of 
the ambit of the criminal justice process". What the DPP has done is to identify 
factors which lead towards or against prosecution, while making it clear that the final 
decision always involves an exercise of judgment based on all the relevant 
considerations. Legally the submission is correct, but it may not accord entirely with 
public perception as the Falconer Commission's comments would tend to indicate. In 
the debate in the House of Commons on 27 March 2012 the Solicitor-General said 
(542 Official Report HC, No 287, Col 1380): 

"There is a growing confusion - perhaps it was there already - 
between the guidelines which are the DPP's policy statement 
on when it is and is not thought appropriate to prosecute and 
the factors that he will consider, and the substantive law that is 
set out in section 2 of the Suicide Act. The two are quite 
different." 

137. Mr McGuinness submitted that to require the DPP to go further than he already has in 
identifying the factors which he will take into account would be to require him to 
cross a line which constitutionally he should not be required to cross. 

138. The DPP has in my judgment done what was required of him by the decision in Purely 
and it would be wrong to require him to do more. 

139. From the DPP's policy statement, I believe that it would be clear to a person who, in 
the course of his profession, agreed to provide assistance to another with the intention 
of encouraging or assisting that person to commit suicide, that such conduct would 
carry with it a real risk of prosecution. 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



140. Whether the risk would amount to a probability would depend on all the 
circumstances, but I do not believe that it would be right to require the DPP to 
formulate his policy in such a way as to meet the foreseeability test advocated by Mr 
Havers. I consider that it would be wrong for three reasons. 

141. First, it would go beyond the Convention jurisprudence about the meaning of "law" in 
the context of the rule of law. Even when considering the meaning of "law" in the 
strict sense of that which may be enforced by the courts, the jurisprudence allows a 
degree of flexibility in the way that it is formulated (Sunday Times v UK). This must 
apply even more in relation to "law" in the extended sense of meaning the law as it is 
liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent 
in a discretion. It is enough that the citizen should know the consequences which may 
well result from a particular course of action. 

142. Secondly, it would be impractical, if not impossible, for the DPP to lay down 
guidelines which could satisfactorily embrace every person in Mr Havers' class 2, so 
as to enable that person to be able to tell as a matter of probability whether he or she 
would be prosecuted in a particular case. As Mr Havers rightly observed, the factors 
for and against prosecution may point in opposite directions. I do not see how the 
DPP could be expected to lay down a scheme by which a person would be able to tell 
in advance in any given case whether a particular factor or combination of factors on 
one side would be outweighed by a particular factor or a combination of factors on the 
other side. The DPP is not like an examiner, giving or subtracting marks in order to 
decide whether a candidate has achieved a pass mark. The DPP has expressed his 
opposition to any such schematic approach for the good reason that each case 
ultimately involves a personal judgment. 

143. Thirdly, it would require the DPP to cross a constitutional boundary which he should 
not cross. For the DPP to lay down a scheme by which it could be determined in 
advance as a matter of probability whether an individual would or would not be 
prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of 
non-prosecution in identified classes of case, rather than setting out factors which 
would guide the exercise of his discretion. 

144. The DPP has published details of two cases in which he concluded that there was 
sufficient evidence to prosecute a doctor for an offence under section 2, but he 
decided on the particular facts that it would not be in the public interest to do so. In 
one case the assistance provided was minimal, consisting of the giving of some 
advice, and there was no evidence that the advice contributed significantly to the 
outcome. In the other case, involving a doctor aged 79 who had been struck off the 
register, the DPP concluded that "on the very particular facts of this case, the likely 
penalty would be a conditional discharge". These examples show that the DPP does 
not take a mechanistic approach to cases which involve healthcare professionals, but 
considers the full facts. Other individuals within Mr Havers' class 2 would cover a 
broad range and the facts might vary infinitely. 

GMC and SRA 

145. Since I have rejected the claim that the DPP is obliged by law to publish further 
clarification of his policy on assisted dying, it follows that Martin's claims against the 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



GMC and the SRA also fail. It is therefore unnecessary to consider the other defences 
advanced by those defendants. 

Is section 2 of the Suicide Act incompatible with article 8? 

146. In Pretty the Strasbourg court agreed with the House of Lords that the blanket ban on 
assisted suicide was not incompatible with article 8, but its reasoning included 
reference to the existence of a prosecutorial discretion about which the House of 
Lords held in Purdy that further clarification was required. Mr Havers' principal 
argument was that the clarification given by the DPP was inadequate in Martin's 
circumstances, but his alternative argument was that without further clarification there 
is an incompatibility between the section and article 8. Mr Bowen argued that section 
2 was incompatible with article 8 unless it was subject to a common law defence of 
necessity. Section 2 would potentially affect Tony if he wished to use Dr Nitschke's 
invention to initiate an act of suicide. 

147. The necessity argument mirrors the argument advanced by Mr Bowen in relation to 
murder, which I have rejected. To allow it would be contrary to the intention of 
Parliament as evidenced by the rejection of Lord Joffe's Bills and the enactment of 
section 2 in its present form in 2009, which was after the decisions of the House of 
Lords and the Strasbourg court in Pretty. 

148. As I see it, the issue of the compatibility of section 2 with article 8 has been 
determined at the highest level, subject to the argument about further clarification, 
which I have rejected. However, if it were open to this court to consider the matter 
afresh, I would reject the claim in any event on the ground that the law relating to 
assisted suicide is an area of law where member states have a wide margin of 
appreciation (Haas) and that in the UK this is a matter for determination by 
Parliament, as the House of Lords recognised in Purdy. 

Is the mandatory sentence of life imprisonment for murder incompatible with the 
Convention in cases of genuine voluntary euthanasia? 

149. There is strong evidence (considered by the Law Commission in its review of the law 
of murder) that the public does not regard the mandatory sentence of life 
imprisonment as appropriate in cases of genuine voluntary euthanasia, and there have 
been calls for it to be changed, but whether it is incompatible with the Convention is a 
matter which the court should decide only in a case in which it is necessary to do so. 
The question might arise if a person were convicted of murder and sentenced to life 
imprisonment in a case of genuine voluntary euthanasia carried out from a 
compassionate motive, but it is not necessary to decide the question in this case 
because it cannot realistically affect Tony's position whether a doctor, or other 
person, who carried out an act of voluntary euthanasia would be exposed to such a 
grave penalty or lesser punishment. On any view, the risk of conviction for homicide 
is likely to be a strong deterrent for any person, especially a professional person. 

Conclusion 

150. Tony's and Martin's circumstances are deeply moving. Their desire to have control 
over the ending of their lives demands the most careful and sympathetic 
consideration, but there are also other important issues to consider. A decision to 



Judgment Approved by the court for handing down. 



Q on the appn of Nicklinson v MOJ 
Q on the appn of AM v DPP 



allow their claims would have consequences far beyond the present cases. To do as 
Tony wants, the court would be making a major change in the law. To do as Martin 
wants, the court would be compelling the DPP to go beyond his established legal role. 
These are not things which the court should do. It is not for the court to decide 
whether the law about assisted dying should be changed and, if so, what safeguards 
should be put in place. Under our system of government these are matters for 
Parliament to decide, representing society as a whole, after Parliamentary scrutiny, 
and not for the court on the facts of an individual case or cases. For those reasons I 
would refuse these applications for judicial review. 

Mr Justice Royce: 

151. I agree with the analysis, reasoning and conclusions of Toulson LJ. I add only this. 
No one could fail to be deeply moved by the terrible predicament faced by these men 
struck down in their prime and facing a future bereft of hope. Each case gives rise to 
most profound ethical, moral, religious and social issues. Some will say the Judges 
must step in to change the law. Some may be sorely tempted to do so. But the short 
answer is that to do so here would be to usurp the function of Parliament in this 
classically sensitive area. Any change would need the most carefully structured 
safeguards which only Parliament can deliver. 

Mrs Justice Macur: 

152. I agree with the judgment of Toulson LJ and endorse the comments of Royce J. 
Superfluous as it may therefore appear I nevertheless feel compelled to comment that 
the dire physical and emotional predicament facing Tony and Martin and their 
families may intensify any tribunal's unease identified by Lord Mustill in Bland (at 
887) in the distinction drawn between "mercy killing" and the withdrawal of life 
sustaining treatment or necessities of life. Judges of the Family Division sitting in the 
Court of Protection adjudicate upon applications for declarations in relation to the 
latter and have become well accustomed to the "balance sheet of best interests" which 
informs the decision of the Court. However, Mr Bowen QC does not succeed in 
persuading me that this process may reassure society that the development of common 
law for which he contends is merited by separate consideration of individual 
circumstances by individual tribunals of whatever stature and experience. The issues 
raised by Tony and Martin's case are conspicuously matters which must be 
adjudicated upon by Parliament and not Judges or the DPP as unelected officers of 
state.